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US Supreme Court Vindicates Sixth Amendment Right to Effective Assistance of Counsel for Non-Citizen Businessman in Jae Lee v. US

McDermott Filed Amicus Brief on Behalf of the American Bar Association, in Support of the Petitioner and the ABA’s Mission to Improve the Quality of the Criminal Justice System

August 1, 2017

In Depth

WASHINGTON, DC (August 1, 2017) — In a widely-awaited decision concerning the Sixth Amendment right to effective assistance of counsel as to non-citizen defendants, the US Supreme Court ruled in favor of a businessman whose lawyer had erroneously advised him that pleading guilty to a drug offense would not lead to his deportation, in Jae Lee v. United States (16-327). McDermott Will & Emery LLP, as counsel to the American Bar Association (ABA), had filed an amicus curiae brief in support of Mr. Lee, urging the Supreme Court to permit him to withdraw his guilty plea and to vacate his conviction.

In a 6-2 decision authored by Chief Justice Roberts, the Court found that Mr. Lee, a long-time legal permanent resident, had demonstrated that he had been prejudiced by his counsel’s erroneous advice that he would not be deported to Korea if he pled guilty to a first-time drug offense. In fact, a noncitizen’s guilty plea to an “aggravated felony” under federal immigration law subjects the defendant to mandatory deportation. “But for his attorney’s incompetence, Lee would have known that accepting the plea agreement would certainly lead to deportation. Going to trial? Almost certainly,” wrote Chief Justice Roberts. “If deportation were the ‘determinative issue’ for an individual in plea discussions, as it was for Lee; if that individual had strong connections to this country and no other, as did Lee; and if the consequences of taking a chance at trial were not markedly harsher than pleading, as in this case, that ‘almost’ could make all the difference.” The Supreme Court thus reversed the decision of the US Court of Appeals for the Sixth Circuit, which had affirmed the district court’s denial of Mr. Lee’s motion to vacate his conviction.

Mr. Lee emigrated from South Korea with his family in 1982, as a 13-year-old, and had lived legally in the United States for decades. In 2009, the successful restaurateur was charged with possession of ecstasy with intent to distribute. Based on his lawyer’s erroneous assurances to Mr. Lee’s questions about the deportation consequences of a plea, Mr. Lee pleaded guilty. When he learned that his lawyer was wrong, Mr. Lee filed a motion to vacate his conviction, claiming ineffective assistance of counsel. However, the district court in Tennessee concluded there was no prejudice, because a decision to proceed to trial would have almost certainly resulted in a guilty verdict, a longer prison sentence, and deportation. The Sixth Circuit affirmed. The Supreme Court’s decision now resolves the disagreement among the federal courts of appeal about whether such defendants who receive bad legal advice and plead guilty -- not knowing that their pleas will lead to deportation -- are prejudiced, when there is strong evidence of guilt.

The ABA brief cited, among other authorities, the ABA Standards for Criminal Justice with respect to a lawyer’s duty to provide competent representation – including the duty to advise a non-citizen defendant about immigration consequences during plea negotiations. The brief argued that a defendant who is deprived of competent legal advice about whether a conviction carries a risk of deportation can be prejudiced, notwithstanding the evidence of guilt, because he cannot make a voluntary and informed decision about whether or not to accept a plea offer and because he is deprived of the ability to negotiate a more favorable plea agreement in the first place.

The amicus brief was written by McDermott partners A. Marisa Chun and Paul M. Thompson and associates Erika N. Pont and Matthew M. Girgenti, with assistance from McDermott Senior Counsel and University of California Hastings law professor Rory K. Little.

About McDermott Will & EmeryMcDermott Will & Emery is a premier international law firm with a diversified business practice. Numbering more than 1,000 lawyers, we have offices in Boston, Brussels, Chicago, Dallas, Düsseldorf, Frankfurt, Houston, London, Los Angeles, Miami, Milan, Munich, New York, Orange County, Paris, Rome, Seoul, Silicon Valley and Washington, DC. Further extending our reach into Asia, we have a strategic alliance with MWE China Law Offices in Shanghai.

About the American Bar AssociationWith more than 400,000 members, the American Bar Association is one of the largest voluntary professional membership organizations in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.